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First published online: 15 September 2020 The continual availability of energy is economically and socially essential, but is primarily reliant on private operators and investments to be maintained and developed. Investments in the energy sector are typically highly capital intensive and require long payback periods. This in turn calls for legal and regulatory stability for such investments by the legislator. While changes to laws are inevitable, such changes should be implemented prospectively and take into account the legitimate expectations attached to existing investments. In this article we analyse the recent practice of the EU to retrospectively apply legal rules in the energy sector. Our research shows that it has been common practice of the EU to grant transitional periods and grandfathering rights to allow market participants to adapt to the 'new rules of the game'. However, while this represents common practice, our research shows that this practice is applied with discretion and can even be misused in the pursuit of political objectives, violating established legal principles including legitimate expectations and legal certainty.

First published online: 13 Feb 2019 This is an Open Access article distributed under the terms of the Creative Commons Attribution-NonCommercial-NoDerivatives License (http://creativecommons.org/licenses/by-nc-nd/4.0/), which permits non-commercial re-use, distribution, and reproduction in any medium, provided the original work is properly cited, and is not altered, transformed, or built upon in any way. This contribution investigates the form and content of a new and updated European Union (EU) legal framework intended to regulate third-country import pipelines for gas, including the ‘upstream’ component of the Nord Stream 2 pipeline. The article will first set the scene and examine the essential features of the current legal regime regulating import pipelines in the EU and explore its extraterritorial dimension, including the discussion of the allocation of competences between the EU and its Member States. Subsequently, the paper will explore the newly proposed EU legal framework for import pipelines as set out in the Commission’s proposal to amend the 2009 Gas Directive. It will focus on three crucial, interlinked dimensions: (1) the proposed form of such legislation; (2) the applicability of the framework to existing and new pipelines entering the EU (scope); and (3) a potential derogation and exemption regime for import pipelines.

This special edition of the European Journal of Risk Regulation deals with a highly topical, complex and controversial subject matter – the reform of the regulation of medical devices in the European Union.At first sight, and as further detailed in the following articles, there appears to be a general consensus about the need to improve the EU (and indeed the US) regulatory framework on medical devices, especially for high-risk categories of devices. Stakeholders including representatives of the industry, patient and consumer organizations, national authorities, healthcare professionals, agree that there is a need for change. However, opinions differ on what needs to be changed and how. Three alternatives for reform of the current EU systemof regulation have been debated over the past years: the adoption of a pharmastyle system of pre-market authorisation; maintaining the status quo but strengthening implementation and supervision in the Member States; or finally, introducing common technical specifications together with specific guidelines for certain high-risk devices.

Under Europe's recent Directive on competition in electricity, Member States retain immense autonomy to set the competitive agenda within their borders. The result may well be a distinctly skewed—and far from open—trade in electricity, and little opportunity for even large customers to make a meaningful choice of suppliers.

This chapter analyses the problems which arise with regard to the political and legal accountability of independent national regulatory authorities which work together with each other and with the Commission in the European networks of national regulators or the ‘European networks plus’. It devotes attention to the political monitoring by and accountability to the European Parliament and/or the national parliaments at the European and national level, respectively, and to the potential role of judicial oversight by the European Court of Justice and the national courts. A distinction is consistently drawn between the present situation of more informal co-operation between the national regulatory authorities in the European networks and the strengthened co-operation within the ‘European networks plus’. As part of the reform of European legislation in the network sectors, the Commission is currently looking at the possibilities for uniform application of European law in the member states and looking at ways of improving the co-ordination between the different national regulatory authorities. The Commission wishes to increase its own ex ante powers and is examining whether the role of the European networks of national regulators could be further strengthened by the creation of ‘European networks plus’. It recently published a proposal for a Regulation founding a European Agency for the Co-operation between Energy Regulators. Owing to the hybrid nature of the European networks and their actions, there are a number of ‘accountability gaps’ both in the present situation and in the proposals for the ‘European networks plus’. The chapter concludes with a number of proposals for improving the accountability of the ‘European networks plus’.

The exemption regime for healthcare services that constitute SGEI as part of the 2011 Decision under the new SGEI Package has been broadened considerably to cover not just hospital care but all (curative) healthcare as well as long-term care, irrespective of the amount of aid or turnover concerned. The IRIS-H decision concerning the financing of public hospitals in the Brussels capital region of Belgium, although adopted by the Commission prior to the 2011 SGEI Package, proves a useful illustration of the way the Commission applies the rules on State aid and SGEI compensation in practice. Both the new 2011 SGEI Package and the State aid practice show that the Commission is content to do without a stringent application of the State aid rules based on economic analysis in the hospital sector—or indeed in healthcare and long-term care at large: net costs are assumed as given, and only the scope for reasonable profits is restrained. The Commission could presumably reverse this trend by bringing its own practice into line with a more ambitious interpretation of its recent legislation, and insisting that Member States do the same.

Where the provision of healthcare services involves undertakings (entities engaged in the provision of goods and/or services on a market) these are subject to the EU state aid rules. State aid questions are raised in particular regarding the compensation for public service provision, which may qualify for exemption as services of general economic interest (SGEI). In the Altmark Case of 2003 the Court of Justice provided criteria for establishing whether aid is in fact involved or not.Where aid exists, this may still be declared compatible with the internal market by the European Commission based on a further set of SGEI criteria that it spelled out in its legislative packages of 2005 and recently in 2011. This paper first looks at the relevant tests in general and then focuses on the main substantive Commission state aid decision with regard to hospital care, involving the public hospitals in the Brussels capital region in 2009. This shows that the Commission leaves considerable leeway for the compensation of public service provision by hospitals. However a more formal approach by the Member States clarifying the scope of their SGEI would help in securing the safe harbour for these services that is provided by the 2011 framework.

This paper examines the challenges to creating sufficient cross border infrastructure to realise the European Union’s ambitions for the creation of a genuine and low carbon European energy market. In particular the relevant regulatory framework for cross border infrastructure has developed in a piecemeal fashion and many projects have in fact benefitted from an exemption procedure from important pillars of the EU energy market, including the requirements of third party access on a regulated basis. The paper reviews and critically assesses the exemption procedures for these co-called ‘merchant projects’under the current and future legislation.

This chapter aims to analysis the new dynamics at work in EU energy regulation. Since the publication of the European Commission’s ‘Sector Inquiry Report’ in January 2007, European energy companies have felt the cold wind of competition law - many for the first time. In addition, national competition authorities (NCAs) have been actively pursuing abusive market practices - sometimes making innovative use of competition law in the process. Certain energy giants have agreed to unbundle their transmission networks - even when their national governments opposed the inclusion of ownership unbundling in the draft ‘Third Package’ of electricity and gas legislation. In parallel, the Third Package envisages the creation of a new regulatory agency - ACER - to co-ordinate technical crossborder regulatory issues in the internal market. So who will be in the driving seat in the next decade - and will co-ordinated regulatory powers be the preferred approach to market design? Will regulatory rules co-exist alongside competition based controls or will the latter gradually supersede the former? This chapter will examine these critical issues.

This book fills a gap in the existing literature by dealing with several issues linked to long-term contracts and the efficiency of electricity markets. These include the impact of long-term contracts and vertical integration on effective competition, generation investment in risky markets, and the challenges for competition policy principles.

On 21 January, 1988 the European Parliament established a committee of inquiry into the so-called Transnuklear scandal which involved alleged illegalities in the transport of radioactive waste to and from West Germany and the reprocessing centre at Mol in Belgium. This article will examine some of the issues surrounding the inquiry to illustrate a number of 'accountability gaps' which can arise in European regulation. This particular case study has been selected on the grounds that it provides a number of useful insights: first, into the nature of the legal problems which can arise when responsibility for the regulation of a particular activity is effectively shared between national authorities and the EC Commission; and second, into problems which can arise when the lines of demarcation between the respective authorities are by no means clear. In particular, the article will examine the potential for European institutions, and especially the European Parliament (EP), to exert control over the joint or shared exercise of regulatory powers, that is, powers shared between national administrations and the EC institutions.

This article discusses which legal principles of good economic governance should form the basis of market legislation and supervision. Respect for the principles will contribute to a good functioning regulatory framework which is likely to enhance business confidence and produce the kind of stability required for longterm investment to take place. Several case studies on access regulation illustrate how disrespect for the principles can hamper an effective realization of the goals of a legal framework for the liberalization of a network industry. The article concludes with some recommendations on how to improve the quality of legislation, practices and procedures that affect the market. It is argued that independent administrative authorities should be obliged to adopt a code of good market governance. The adoption of a code of good market governance will form an extra check on the exercise of discretionary powers and guarantees that the agency’s decisions are based on sound economic analysis and comply with the principles of predictability and consistency.

This paper addresses an issue which is of a certain novelty — the impact of Community rules and regulations on the way in which energy sectors are organized and indeed regulated at the national level. I have deliberately chosen to qualify the word ‘novelty’ for several reasons. Firstly, as is generally well-known, the three Treaties establishing the European Communities (the EEC, ECSC and Euratom Treaties) have, at least in theory, applied to national energy sectors since the 1950s. Nevertheless, many of the powers available to the European Commission, the institution entrusted with the role of guardian of the Community constitution, have never been fully exercised. The reasons for the ‘benign neglect’ of energy are complex, and can largely be attributed to the sensitive political and economic nature of the sector.

‘Deregulation’ is best conceived as covering two separate sets of processes: changes to the structure of rules embodied in regulatory systems; and disturbances to the stability of those systems due to the inability of system ‘governors’ to function effectively. The most striking feature of deregulation is variety - in incidence, form and extent. This variety is a function of three broad sets of variables: place, notably national setting; time, notably the historical epoch and the stage in a regulatory cycle when deregulation happens; and arena, notably the economic arena and policy networks where deregulation takes place.

This chapter reviews the political science research on European Union (EU) State aid policy. The literature focuses primarily on the evolution of State aid control and on the institutions and actors who play a role in the policy. Resting on Treaty provisions that were little used in the first decades of the European Community, the Commission’s incremental soft law approach, supportive jurisprudence from the Court of Justice of the European Union (CJEU), and the involvement private complainants have helped bring together Commission and Member State interests in support of State aid control. The Commission’s handling of the financial crisis, a test for the more mature regime, has been largely judged a success. Over time policy initiatives have helped to reduce and target national subsidies, and the enforcement of and compliance with the Treaty provisions have improved dramatically since the late 1980s. The political dimension of the policy seems to have less resonance these days, as there are fewer high-profile controversial cases than in the past, but there are still interesting questions to be addressed about the way in which competition, regional, environmental, cultural and industrial policies are balanced against each other in the design and application of the EU-level policy and decision-making, and what the implications of UK’s departure from the EU and the emergence of populist governments and leaders in the Member States might mean for State aid control.